State incorrectly obscures millions of dollars in legal payments

Andrea Ball @andreeball

Saturday

Sep 24, 2016 at 12:01 AMSep 25, 2018 at 9:06 PM

The state of Texas has been improperly concealing public information about thousands of legal settlements and court judgments worth millions of dollars, an American-Statesman review of government legal records shows.

But in response to a series of open records requests filed by the newspaper, most state agencies agreed to re-examine their policies to make such information more easily available to the public. Some conceded the payments have been mislabeled as secret. While the Department of Criminal Justice contended state law prohibited it from revealing some of the information, records show it appears to have obscured more than that statute would allow.

Several of the agencies also split hairs. While agreeing the payments were clearly public records under the law, they added they weren’t going to advertise the information — effectively creating different categories of public records. "What that means is that if you ask for it, you can have it," said Sylvia Hardman-Dingle, general counsel for the Department of Assistive and Rehabilitative Services. "But we’re not going to go out and broadcast it."

The payments of taxpayer money, from hundreds of dollars to hundreds of thousands of dollars each, typically are made to resolve legal claims against the government. The cases can range from car wreck injuries in which the driver of a state vehicle was at fault, through whistleblower lawsuits alleging government misbehavior, to illegal beatings of an inmate by state prison guards.

Such payments, like nearly all Texas government checks, must be recorded by the comptroller, the state’s accountant. Yet a review of legal judgments and settlements from the comptroller’s office shows that over the past five years anywhere from a quarter to nearly half of the payments have been classified as "confidential" in a given year.

The result: A citizen searching the office’s website for information about a $100,000 settlement paid by the Texas Department of Public Safety in March 2012 will be told that information is secret. Want to learn why the Texas Education Agency paid $230,000 in legal claims over the past three years, or which inmate received an $85,000 check courtesy of Texas taxpayers last November? The comptroller’s office also shows that information as confidential.

In fact, every legal settlement and judgment paid by the Texas Department of Criminal Justice in recent years has been deemed secret — even though "there is definitely a public interest in wanting to know how taxpayer money is being paid to prisoners in the form of legal settlements," said Bill Christian of Graves, Dougherty, Hearon & Moody, an open records attorney who has represented the Statesman.

‘We changed it immediately’

Open government experts say that, with an extremely narrow number of specific exceptions, such as payments to children, Texas laws are clear that officials cannot hide how they spend taxpayer money. "Even then it would be my opinion that basic terms must be disclosed," said Bill Aleshire, an Austin attorney specializing in open records and former Travis County judge. "It goes to one of the purposes of public disclosure — accountability. You want to make sure the state is not being reckless in its spending."

In principle, the comptroller’s office agrees. The TexasTransparency.org website, which provides a one-stop clearinghouse for citizens to search how state government spends their money, declares: "When we talk about transparency in terms of government spending, we are referring to government opening its books to the public so that taxpayers can see exactly where their money is going … by making all decisions in the open and on the record."

The newspaper’s analysis of comptroller records shows Texas state agencies made about 3,000 legal settlements and judgments from fiscal 2009 through the first quarter of 2015 totaling about $30 million. Yet about a third of those are listed as confidential, providing no information about their recipients.

A spokeswoman for the agency, Lauren Willis, said in most instances the comptroller’s office was simply recording information provided to it by individual agencies. When those departments identified a legal settlement as confidential, the comptroller noted the designation and posted it as such. (Records show that between 2009 and early 2015, however, the comptroller’s office also identified $380,000 worth of its own legal settlements as secret.)

So the Statesman filed open records requests with a dozen individual agencies asking for basic information about legal settlements they had identified as secret.

In response, most agreed they had mistakenly identified the payments as information that should be shielded from public view. While some said it was a matter of mislabeling the payments, others conceded it was a misreading of open records laws.

The Texas Education Agency, for example, which in recent years has paid $280,000 in legal settlements it identified as confidential, "erroneously believed that because the settlement mediation process was confidential, then any resulting settlements and payments were also confidential," spokeswoman DeEtta Culbertson said.

She said the agency discovered the error after the newspaper’s request for the information. TEA will no longer mark such settlements and payments confidential unless the law specifically requires them to do so, Culbertson said.

The agency’s new rules will reveal that it most recently paid $35,000 to a former employee named Lisa Gregg to settle a gender discrimination claim. "The males who were working in that environment were making substantially more," said her attorney, Martin Cirkiel.

Similarly, the General Land Office said it has a new disclosure policy. Several years ago, during former Land Commissioner Jerry Patterson’s administration, the agency decided to keep those records secret, spokesman Jim Suydam said. That policy was changed only late last year after the agency received an official request for that information.

"When we discovered it was being done, we changed it immediately," Suydam said. Updated, the records show the General Land Office paid $90,000 in 2012 to settle a claim brought by Monica Bosquez, Tina Lewis and Dalinda Newby that their salaries were about $20,000 lower than men doing comparable work.

The comptroller’s office, too, released records in response to the newspaper’s request showing nearly $300,000 in payments to Betty Hall and Elizabeth Davis to settle discrimination cases — information the agency had previously marked confidential.

Back-door information source

In several instances, state agencies appear to have a conflicted view of what it means to make a record public.

According to comptroller records, the Texas Department of Transportation paid nearly 150 confidential settlements or judgments totaling more than $2.3 million between fiscal 2009 and part of 2015. The agency released the information in response to the newspaper’s open records request; the vast majority were payments to victims of vehicle wrecks caused by TxDOT employees.

In a written statement, a spokesman for the department’s office of general counsel explained that when it identified the payments as secret, it didn’t necessarily mean they were: "Basically, just because documents are labeled ‘confidential’ or we may not want to post the information online doesn’t mean the information is confidential for the purposes of the Public Information Act."

Similarly, the attorney general’s office, which reviews legal settlements for many state agencies, explained that when it had marked settlements "confidential," it didn’t intend that the public couldn’t see them. Rather, said spokeswoman Allison Castle, the designation was intended only to alert the comptroller’s office to check with the agency before releasing the information in case it might be confidential. Castle added, however, that her agency will now review each settlement to determine whether it is truly confidential before it is reported to the comptroller.

One state agency resisted releasing settlement and judgment information.

From fiscal 2009 through the first part of 2015, the Texas Department of Criminal Justice paid more than 600 legal claims worth nearly $4.5 million. According to the comptroller’s office, all are considered confidential.

The department’s assistant general counsel, Patricia Fleming, conceded that many of its settlements should be public, saying it was unclear why they showed up as confidential in comptroller records. But she added other payments involved inmates, and, she said, state law prohibited the agency from releasing anything other than basic information about prisoners. The agency has asked the attorney general, who settles open records disputes, to rule on the issue.

While they’re waiting for that decision, however, citizens can find all the information through a back door that even many state officials acknowledged they knew nothing about. A recurring instruction in the state’s biennial budgets instructs the attorney general’s office to report monthly to the Legislative Budget Board every settlement and judgment payment it processes.

According to those documents, obtained by the Statesman under Texas open records laws, the corrections agency has paid many legal judgments to noninmates — meaning there is no obvious reason for their confidentiality. In April 2012, for example, it paid Helotes resident James Benke $75,000 "when TDCJ inmates improperly cut down trees on their property, and caused other trees to die from oak wilt." Reached by phone, Benke declined to discuss the incident.

Other records show why such information can be important to an informed public. According to the documents, a year ago the prison agency paid $152,000 to settle a case in which inmate David Beceril claimed guards at the Estelle Unit in Huntsville hadn’t protected him from a savage beating by another prisoner. In November, Legislative Budget Board records show the criminal justice agency paid $147,500 to settle a claim filed by former inmate Joe Hill III, who said a beating he’d received from guards at the McConnell Unit in Beeville in March 2010 had left him permanently disabled.

CORRECTION: This story has been updated to correct the name of former Land Commissioner Jerry Patterson.

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